In Shrimati Indira Nehru Gandhi v. Shri Raj Narain, [1976 2 SCR 347] Ray CJ. and Chandrachud J. had laid stress on rule of law in our constitutional scheme. The term ‘rule of law’ is not a magic lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have. It can only mean, in the realm of reality, what the law is and what it demands. What is expressed makes what is silent cease.
[The following note quotes certain individuals, with respect. The intention is not find who is correct and who is not. Any declaration on ‘separation of powers’, ‘rule of law’ shall always involve different views, depending on relevance of circumstances. There can never be an irreversible conclusion.]
ADM Jabalpur had said, “if there is power, extreme examples will neither add to the power nor rob the same; extreme examples tend only to obfuscate reason and reality”. Chandrachud J. had the ‘diamond-bright, diamond-hard hope’, those detained would not be whipped, stripped, starved or shot. Senior Advocates, Raju Ramachandran and Chander Uday Singh have described that observation as ‘naïve’. Legitimately so, the Majority Judgment has travelled from an ‘archive’, exhibiting ‘what should never have been’, to a ‘dustbin of history’, to an indeterminate location, ‘ten fathom deep’. The scars inflicted are ‘deep’, as has been succinctly evaluated by Senior Advocate, Dushyant Dave.
It was not without reason ADM Jabalpur was expressly overruled. Manu Sebastian has warned, the present circumstances, in many ‘ominous ways’, is a ‘redux’ of Emergency. Suhrith Parthasarathy, in fact, considers the overruling, for all ‘practical purposes’, to be ‘meaningless’. Murali Krishnan has questioned the sufficiency of travel to an indeterminate location. Apar Gupta suggests ADM Jabalpur’s ‘troubling legacy must not only be buried by legal doctrine but by legal practice’. Gautam Bhatia concluded long back that Khanna J.’s dissent remains an ‘ineffectual angel vainly beating its luminous wings in the void’. When extraordinary times come upon us and extraordinary measures are required, can the State decide without being awarded a ‘jurisdiction of suspicion’?
Mission Kashmir is not new. Those who love to write shall write on the tactical issues. But if the Majority Judgment of ADM Jabalpur needs frequent citation for knowing ‘what should never have been’, its burial ‘ten fathom deep’ was just imagination at play. Ray CJ. wrote an autobiography that has not been published, till date. Senior Advocate, Jaideep Gupta has been handed over 99% of the declarations to embolden the process of publication. Sitting Judges of the SC have subconsciously promised a preface. I wonder where ADM Jabalpur goes next.
“I suspect and fear that history will hold that the Judiciary’s sins as being far greater and darker with respect to 2019 than with respect to 1976. For in 1976, the Court seemed to be shielding the Executive. In 2019 and I say this with great respect, the Court seems to be joined at the hip with the Executive.”
“Justice Khanna’s legendary dissent in ADM Jabalpur is often taken to be an indictment of the Emergency itself. It was not. Justice Khanna agreed with the Majority to the extent that the validity of the Emergency could not be tested… He was willing to assume that the Executive was acting in good faith…“